Criminal Law

Sentencing Credits

By Janet Portman, Attorney
Not every state requires sentencing judges to give credit for pre-trial detention. Good time credits can be taken away on the slimmest of evidence.

A sentencing credit for criminal defendants is a period of time, usually expressed in days, which will be subtracted from the sentence the defendant received for a conviction. A credit of four months, for example, will reduce a four year sentence to a three-year and eight months sentence. Sentencing credits can arise or be earned before the conviction and after conviction, while the defendant is serving the sentence. Credits earned post-conviction can also be taken away by prison authorities.

This article explains pre- and post-conviction sentencing credits, and notes the instances in which credits will generally not be applied.

Pre-Conviction Sentencing Credits

Many defendants are able to bail out of jail (or be released on their own recognizance) on the day they’re arrested or very soon thereafter. But those who cannot afford bail, or who are not eligible for bail, can end up spending many weeks or months in pre-trial detention. Here’s the problem that this scenario sets up: Imagine two defendants who committed identical crimes, were convicted of the same offense, and received the same sentence. One bailed out as soon as he was arrested; the second had no funds for bail and spent two months in jail, awaiting trial. The second defendant will end up with a longer period of incarceration (by two months), only because he could not afford bail.

Traditionally, courts did not take pre-conviction incarceration into account when sentencing convicted defendants, reasoning that there was no relationship between pre-trial jail time and the punishment eventually meted-out. But that view has changed in modern times.

Giving Pre-Conviction Credit

The outcome described in the above example has been viewed by many legislatures and courts as discriminatory. Statutes in many states require that judges give credit to the second defendant towards the sentence imposed for the crime (in our example, the court judgment will specify that two months should be deducted from the sentence). And in some states, even in the absence of a statute, a court can decide on its own that credits are in order. Courts are most likely to give credit (even in the absence of a statute) when

  • the defendant remained in custody due to an inability to make bail (as opposed to a no-bail situation), and
  • the court has imposed the maximum sentence allowed for the crime.

When these conditions are met, failing to give credit for time already served would result in the defendant spending more time than allowed by law for the offense.

A defendant confined to a juvenile institution, or in the custody of a half-way house or mental hospital, may also obtain credit in some states.

The rule for persons convicted of federal crimes is refreshingly clear. Defendants are given credit for time served pre-conviction, as long as that credit has not been applied to another sentence. (18 U.S.C.A. § 3585.)

Not Giving Pre-Conviction Credit

Although the modern trend is to give credit for pre-conviction incarceration, courts in some states retain the ability to withhold it (for example, when the defendant is a repeat offender). Some states presume that the sentencing judge will have taken the presentence custody time into consideration when deciding on the eventual sentence, thereby “giving credit” in an indirect (though hardly transparent) way.

Post-Conviction Sentencing Credits: “Good Time”

Defendants sentenced to prison almost never end up serving the sentence that was announced from the trial court bench. Not only do many of them get credit “for time served,” if they spent time in pre-trial custody, but they also earn time off for good behavior while in prison. The amount of “good time” that prisoners may earn varies by state. To earn good time, the prisoner must have a discipline-free record. Attending counseling and educational programs can sometimes contribute to good time.

Earning – and Losing – Good Time

A prisoner who dutifully follows prison rules and earns good time credits may not necessarily see his ultimate sentence reduced. Those credits may be lost through changes in the law, or by subsequent misbehavior by the prisoner.

  • Legal changes. In some states, if the credit-earning statute changes, the prisoner’s tally may change, too. In other words, the credits don’t vest until they are actually applied and the prisoner is released. Other states give the prisoner the benefit of the good time statute that applied when the prisoner was sentenced.
  • Practical changes. Prisoners can lose their credits by failing to follow prison rules, particularly if they commit another crime while incarcerated (most notably, escaping or attempting to do so). In some states, violating parole can result in the forfeiture of good time credits (the parolee will be returned to prison to serve the balance of his sentence, without deductions for previously earned good time).

Contesting the Loss of Good Time

Prisoners whose good time credits have been removed or forfeited by prison authorities are not without some due process rights, though they do not rise to the level of those accused of a crime. To begin, a statute’s procedure governing the revocation of rights must be followed. Then, at a minimum:

  • The prisoner must be given a written notice of the claimed violation.
  • The authorities must provide a written statement of the facts that support the revocation.
  • The prisoner is entitled to a hearing, where he has the right to call witnesses and present documentary evidence, as long as doing so would not be overly hazardous to prison safety or legitimate correctional goals.

However, prisoners do not have a constitutional right to counsel, nor to confronting and cross-examining adverse witnesses. (Wolff v. McDonnell, 418 U.S. 539 (1974).) The authorities may revoke credits if there is “some evidence in the record,” or “any evidence,” or “some basis in fact” to support their decision—a standard quite far below the “beyond a reasonable doubt” standard for criminal convictions. (Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445 (1985).)

Some state statutes give prisoners the right to a review in court of good time revocations, but generally the only issue that can be raised is whether the prisoner’s due process rights were honored.

Questions for Your Attorney

  • After the warden claimed I violated prison rules, I was moved into a different good time classification scheme, which will result in fewer days earned. Am I entitled to a hearing on this development?
  • While on parole I was arrested for a new crime, and I’m in custody awaiting trial for that charge. Will my in-custody days now count as good time for the original sentence, as well as any new sentence I might receive for the second incident?
  • Is there any way that we can challenge the good time credit system itself, as being arbitrary or unfair?
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